A fact or a fallacy?

14 September 2017

Background
South African deeds registration system has over the years been regarded as one of the best registration systems in the world. Unlike other registrations, this one guarantees security of title. What this article seeks to address is whether this notion still holds water in the present day registration system. Is security of title a fact or fallacy?

Current Deeds registration system
This system in solely dependent on the drafting of documents by legal professionals called conveyancers after having done searches in deeds registries verifying ownership details, or must I say that it is expected of them to have made such searches. From there it is expected that the documents properly drafted serving to pass transfer from one owner to the other, will be submitted to deeds registries to deeds registries to check compliance with all legislation. If found to be in compliance after three levels of examination, deeds are submitted for registration, thereby passing transfer from one owner to the other upon signature by registrar of deeds. Ownership is deemed to have been passed from one owner to the other at this stage.

The question to be posed is whether our land registration system is only dependent on these three processes to render it one of the best in the country.

Security of title at risk
It has emerged that with the standard of education at universities; coupled with relaxed methods of examination of prospective conveyancers; inefficiencies and unaccountability by compliance officers in deeds registries; and unreliable databases, this security of title cannot be guaranteed.

The deeds registries, because of the above facts are currently transferring properties belonging to owners without the owner being aware of the transaction. The office even transfers one property to more than one person in different transactions.

On a daily basis offices are inundated with queries from members of the public, who will each be questioning what happened to security of title, in that each will be in possession of a valid title deed executed validly in the deeds registries. The easy answer that these offices give is to approach the court to declare one of the titles invalid.

What these offices fail to acknowledge, is their responsibility towards providing security of title.

Standard of conveyancing
The standard of conveyancing from the writer’s point of view, has reached unacceptable levels. The quality of deeds produced does not warrant the fees charged. I will briefly elaborate on reasons raised by conveyancers when approached to comment on this issue:

“We are merely a lodging and executing conveyancers and cannot account for the preparing conveyancer or attorney.”

“We have been lodging deeds with the same mistakes for the past 10 years and no one has picked up on the mistakes and why now.”

“There is no prejudice to anyone.”

“Why are examiners not picking up the mistakes on examination?”

The other reason why conveyancing standards have dropped is due to the lack of pride by the professionals in the work produced by them. In the office in question, 40% of deeds lodged with the office are rejected for examiners’ notes, and I can safely say 20% of those registered were erroneously registered as there was no basis for transfer, limited authority to act, or the wrong property was transferred etc.

The common errors found in one office over a period of six months amongst others are the following:

applications to the registrar of deeds in one out of 5 lack substance;

layout and language used in both deeds and applications are of such a level that according to the writer, documents are reduced to the level of love letters/scribbling pages;

forms not followed;

preambles and authority to act are unclear;

supporting documentation is missing;

legislation is not complied with;

double registration.

One deeds registry office in South Africa, is sitting with a major legal uncertainty pertaining to all the Proc 293 properties falling within its areas of jurisdiction. The situation is that from the preliminary investigation, 1 in 10 properties in all those townships is a double registration out of approximately 200 000 erven. One Mrs. X bought a property and registered a bond over the property, hoping that her property in one of the Proc 293 townships will be sold. Lo and behold, what Mrs. X did not know is that the property cannot be transferred as it is a double registration with another property resulting in Mrs. X having to pay two bonds.

Conclusion
From the discussion above, it is evident that the security of title in the South African land registration context is reduced to a mere fallacy, resulting in mere possession of title deed not guaranteeing any title whatsoever. What this article is aiming to achieve, is to challenge all stakeholders to URGENTLY come up with a strategy of dealing with this issue.

Adv. A F Gwangwa
Registrar of deeds (PMB)

(Please take note that the views presented here are the views of the author and do not represent the view of the office or of the department)

If this is true it is indeed a sad day. Used to be so proud of the system. Remember when I was a young conveyancer who went to the deeds office every single day. How we respected the examiners for their knowledge, skill and strictness and how junior conveyancers and clercks respected the senior conveyancers. It was a tough but respected profession. The pubic could trust their coveyancers, the deeds office and the title they held. It can happen again. Thank you for your article. I agree something has to be done urgently. W C J van Rensburg